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Friday, April 30, 2010

"Up for Grabs"

I conclude the acquisition by capture section of my property
class with a discussion of the controversy that erupted over the ownership of
Barry Bonds’ 73d home run ball back in 2001.For those who don’t know the story, when Bonds hit the
record-establishing homer into the right-field stands at PacBell Park,
it ended up in the hands of a fan named Patrick Hayashi.Soon, however, another bleacher denizen, Alex
Popov, claimed that he had initially caught the ball and that Hayashi had
wrested it away from him in the ensuing scrum (a contemporaneous video gave
some credence to Popov’s claim).The
case was litigated in state court amid much fanfare, and the court
solomonically divided ownership of the ball equally among Popov and
Hayashi.By the time the court issued
its decision, though, Bonds’ star had faded enough that the ball fetched a
subpar sum at auction—not even enough to cover the litigants’ attorney’s fees.

When we were discussing the case in class this year, a
student astutely pointed out that there is a documentary about the case, called Up for Grabs.I discovered that the
film is available on Netflix, and found it both amusing and riveting.The film has many themes (notably greed and
the thoroughgoing American obsession with fame) but it’s a great law film as
well (the courtroom testimony of the various witnesses to the Popov/Hayashi
scuffle seem like they could have been lifted from a Christopher Guest parody).

One law theme that emerges from the film that’s of
particular interest to me is that the public unanimously expressed scorn for Popov
and Hayashi’s decision to litigate the ball’s ownership rather than informally settling
the issue.Below, I say a bit more about
what this means about public (mis)perceptions of how the law works, and the
apparently strong preference that the public has for informal rather than
formal resolution of property disputes.

Throughout Up for Grabs, interviewees agree that Popov and
Hayashi should simply privately agree to split the value of the ball equally between
them, rather than seeking to have a court award it to one of them.Even Barry Bonds makes this point when he is
asked about the dispute at a press conference.Each litigant expresses a different reason for pursuing the suit;
Hayashi seems to think his physical ownership of the ball is dispositive, while
Popov has video evidence and lots of witnesses that he thinks will show he is
the ball’s rightful owner.

But the public’s insistence that the parties should split
the value of the ball puzzles me, because it seems to assume that neither party
has a superior claim.Popov is, more or
less, saying that Hayashi stole the ball from him.If that’s right, then Hayashi is no more
entitled to half of the ball’s value than a pickpocket is entitled to half the
cash in a wallet he thieves.

Put differently, I was surprised that not a single member of
the public interviewed in the film said what appears to be the most
intellectually honest thing about the case:“I don’t know all the facts, so I have no idea who should get what.”(In fairness, perhaps there were such
interviews that did not make it into the final version of the film.I can imagine such interviews wouldn’t make
very interesting cinema.)

This isn’t to say that public opinion about legal issues is
not meaningful; it’s just thatpublic
(or any) opinion about legal issues can’t be meaningful in the absence of a
reasonable understanding of the relevant facts.Hence I’m always baffled at polls that ask the public “Do you agree with
the Supreme Court’s decision in [some case]?” when the overwhelming likelihood
is that the person being asked hasn’t read the case at all.

The public’s distaste for Popov and Hayashi’s choice to
litigate the ball’s ownership may also express a distaste for litigation
generally.It reminds me a bit of a
theme emergent in one of my favorite law books, Order Without Law, when Ellickson shows that Shasta County ranchers
regard resorting to lawyers and formal law as something distasteful on its own
terms.The idea, I think, is that many
people think resorting to litigation is a sign of weakness because it means you
have to hire someone else to do your dirty work.The folks interviewed in Up for Grabs think Popov
and Hayashi should meet and work their problems out in person, just like
ranchers way up in “superior” California.

And aside from the great legal themes, Up for Grabs features
a full-frontal view of a distinctive feature of the modern American
psyche:the lust for fame by any means
necessary.Both of the principals seek
to translate the sheer luck of being near the Bonds HR ball into not only fortune
but also into Warholian fame.Popov
especially seems to be especially high on his newfound celebrity, at one point
trying to impress girls in a bar by introducing himself as “the guy who caught
the Bonds home run ball” (to their credit, the girls feign enthusiasm in order
to mock Popov).

Highly recommended, for property profs, baseball fans, and
just about anyone.

Posted by Dave_Fagundes on April 30, 2010 at 04:23 PM in Film | Permalink

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With the usual disclaimers of false modesty, I append a reference to my article on this subject which was given to Judge McCarthy when I was an expert witness in Popov v. Hayashi. I may be the only law professor in America to have had the opportunity (which I gleefully took) to expound on the importance of Pierson v. Post (and a bunch of other cases like that) as a witness in a case. The court session that day was held in the courtroom at Hastings law school and you could hear the students whispering, "that was the case we did in property." As far as I know this I was the first legal scholar (although no longer the only one) to publish an article to consider this issue. Happy to send a pdf of the article to anyone who wants one (paul.finkelman@albanylaw.edu):

Paul Finkelman, "Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball?," 23 CARDOZO LAW REVIEW 1609-1633 (2002).

Now for the really self-serving part: happy to accept invitations to speak at law schools on baseball and law. See also:

Baseball and the Rule of Law Revisited, 25 THOMAS JEFFERSON LAW REVIEW 17-52 (2002).